Chapter 13: Ecosystem Resources 13.1 Introduction This chapter describes the ecosystem resources, habitat types, and What is the ecosystem wildlife species in the ecosystem resources impact analysis area and how resources impact analysis these resources would be directly and indirectly affected by the project area? alternatives. The ecosystem resources impact Ecosystem Resources Impact Analysis Area. The ecosystem analysis area extends along resources impact analysis area extends along State Route (S.R.) 210 S.R. 210 from its intersection from its intersection with S.R. 190/Fort Union Boulevard in Cottonwood with S.R. 190/Fort Union Boule- vard in Cottonwood Heights to its Heights to its terminus in the town of Alta, including the Alta Bypass Road terminus in the town of Alta, (for a graphic depiction of the impact analysis area, see Figure 13.3-1, including the Alta Bypass Road. Wildlife Habitat Types in the Ecosystem Resources Impact Analysis Area, It also includes the area around on page 13-7). It also includes the area around the gravel pit adjacent to the gravel pit and the existing Wasatch Boulevard north of Fort Union Boulevard and the existing park- park-and-ride lot at 9400 South and-ride lot at 9400 South and Highland Drive. For wildlife habitat, the and Highland Drive. For wildlife habitat, the impact analysis area impact analysis area includes the entirety of Little Cottonwood Canyon. includes the entirety of Little The areas adjacent to Wasatch Boulevard, the gravel pit, and the park- Cottonwood Canyon. and-ride lot are primarily residential and commercial developments. From North Little Cottonwood Road through the town of Alta, the impact analysis area includes the wildlife, vegetation, and aquatic resources present in addition to a mix of residential and commercial (ski resort) development. What is a take of a listed 13.2 Regulatory Setting species? For a discussion of the Utah Division of Water Rights stream alteration The term take means to harass, permit program for streams that would be affected by the action harm, pursue, hunt, shoot, alternatives, see Chapter 24, Permits, Reviews, Clearances, and wound, kill, trap, capture, or Approvals. For a discussion of Executive Order 11988, Floodplain collect an individual of a species Management, see Chapter 14, Floodplains. listed as threatened or endan- gered (16 USC Section 1532). 13.2.1 Threatened and Endangered Species The Endangered Species Act (16 United States Code [USC] Sections 1531–1544) provides for the conservation of threatened and endangered species and the ecosystems on which they depend. Section 9 of the Endangered Species Act prohibits the “taking” of any endangered species without a permit, and Section 3 of the Act defines “taking” broadly to include actions that are not necessarily intended to cause harm to the species (an “incidental taking”). June 2021 Utah Department of Transportation 13-1 Section 7 of the Endangered Species Act requires federal agencies to consult with the U.S. Fish and Wildlife Service (USFWS) before taking What is critical habitat? any action that could affect a federally listed threatened or endangered Critical habitat is defined as species or designated critical habitat for an endangered species. In geographic locations critical to addition, federal agencies must ensure that their actions are not likely to the existence of a threatened or jeopardize the continued existence of any listed species or to destroy or endangered species. adversely modify any designated critical habitat. Under the Memorandum of Understanding described in Section 1.1, Introduction, in Chapter 1, Purpose and Need, the Utah Department of Transportation (UDOT) has been assigned the Federal Highway Administration’s (FHWA) responsibilities for compliance with Section 7 requirements as part of the environmental review process for highway projects in Utah. If UDOT (acting in the role of FHWA) makes a determination that a proposed action would have “no effect” on a threatened or endangered species, no further consultation is required; this determination does not require concurrence from USFWS. In working with the U.S. Department of Agriculture (USDA) Forest Service, UDOT has determined through the analysis in this Environmental Impact Statement (EIS) that there would be “no effect” on any threatened or endangered species from the project alternatives; therefore, the Endangered Species Act is not pertinent to the S.R. 210 Project (UDOT 2021). 13.2.2 Migratory Bird Treaty Act The Migratory Bird Treaty Act makes it unlawful to take, import, export, possess, sell, purchase, or barter any migratory bird, with the exception of the taking of game birds during established hunting seasons. The law also applies to feathers, eggs, nests, and products made from migratory birds. This law is of particular concern when birds nest on bridges, buildings, signs, lighting structures, or ferry dock structures. Executive Order 13186, Responsibilities of Federal Agencies to Protect Migratory Birds (signed by President Bill Clinton on January 10, 2001), directs federal agencies taking actions likely to affect migratory birds to support the Migratory Bird Treaty Act, including requiring agencies to evaluate the effects on migratory birds and species of concern in National Environmental Policy Act (NEPA) studies. 13.2.3 Bald and Golden Eagle Protection Act The Bald and Golden Eagle Protection Act makes it unlawful to take, import, export, sell, purchase, transport, or barter any bald or golden eagle or their parts, products, nests, or eggs. Take includes pursuing, shooting, poisoning, wounding, killing, capturing, trapping, collecting, molesting, or disturbing eagles. June 2021 13-2 Utah Department of Transportation 13.2.4 Clean Water Act The U.S. Army Corps of Engineers (USACE) developed a definition of waters of the United States in the 1972 Clean Water Act (33 USC Section 1251). Waters of the United States are jurisdictional waters and are defined in 40 Code of Federal Regulations (CFR) Section 120.2 as (i) the territorial seas, and waters which are currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce, including waters which are subject to the ebb and flow of the tide; (ii) tributaries; (iii) lakes and ponds, and impoundments of jurisdictional waters; and (iv) adjacent wetlands. Under Section 404(b)(1) of the Clean Water Act, wetlands are considered special aquatic sites, and when they meet definition of adjacent wetland in 40 CFR Section 120.2 they are considered waters of the United States. As described in 40 CFR Section 230.1, the objective of the Clean Water Act is to maintain and restore the chemical, physical, and biological integrity of the waters of the United States. Pursuant to the Clean Water Act, USACE has jurisdiction over all waters of the United States. Section 404 of the Clean Water Act prohibits the discharge of dredged or fill material into wetlands or other “waters of the United States” without a permit. Any person, firm, or agency planning to alter or work in waters of the United States, including the discharge of dredged or fill material, must first obtain authorization from USACE under Clean Water Act Section 404 and, if applicable, Section 10 of the Rivers and Harbors Act of 1899 (33 USC Section 403) for work within navigable waters of the United States. Additionally, Executive Order 11990, Protection of Wetlands, directs federal agencies to take actions to minimize the destruction, loss, or degradation of wetlands and to preserve and enhance the natural and beneficial values of wetlands in carrying out agency responsibilities. USACE issues Section 404 permits pursuant to the Section 404(b)(1) What are aquatic resources? Guidelines, which were issued by the U.S. Environmental Protection Agency (40 CFR Part 230). One of the key requirements in the guidelines Aquatic resources include rivers, is that a Section 404 permit cannot be issued for an alternative if there is lakes, streams, creeks, natural another practicable alternative that would cause less adverse impact to ponds, and wetlands. aquatic resources. This requirement is commonly known as the requirement to select the “least environmentally damaging practicable alternative.” In addition, Executive Order 11990 also states that agencies are directed to avoid new construction in wetlands unless an agency determines that there are no practicable alternatives to such construction. June 2021 Utah Department of Transportation 13-3 13.1.1 Riparian Habitat Conservation Areas Defined in the Revised Forest Plan: Wasatch-Cache National Forest The Revised Forest Plan: Wasatch-Cache National Forest (USDA Forest Service 2003) includes guidelines for Riparian Habitat Conservation Areas (RHCAs). RHCAs include traditional riparian corridors, wetlands, intermittent streams, and other areas that help maintain the integrity of aquatic ecosystems by (1) influencing the delivery of coarse sediment, organic matter, and woody debris to streams; (2) providing root strength for channel stability; (3) shading the stream; and (4) protecting water quality. This designation still allows for a full range of activities, but it emphasis the achievement of riparian management objectives that are identified on a site-by-site basis. These objectives should include riparian vegetation and in-stream habitat condition. The RHCAs, by condition, are defined below. Category 1, Fish-bearing streams: RHCAs consist of the stream and the area on either side of the stream extending from the edges of the active stream channel to 300 feet slope distance (600 feet, including both sides of the stream channel). Category 2, Permanently flowing, non-fish-bearing streams: RHCAs consist of the stream and the area on either side of the stream extending from the edges of the active stream channel to 150 feet slope distance (300 feet, including both sides of the stream channel). Category 3, Ponds, lakes, reservoirs, and wetlands greater than 1 acre: RHCAs consist of the body of water or wetland and the area to 150 feet slope distance from the edge of the maximum pool elevation of constructed ponds and reservoirs or from the edge of the wetland, pond, or lake.